Georgia Attorney General Asks Courts to Block Clean Water Rule

Georgia Attorney General Sam Olens has asked the 6th Circuit Federal Court of Appeals to expand a stay to block the “Waters of the United States” rule nation wide.  The WOTUS rule, announced earlier this year by the EPA and US Army Corps Engineers, clarifies which water bodies are protected by the Clean Water Act.

Olens describes the rule as an “unlawful expansion of federal power.”

The rule was written to clarify the federal government’s jurisdiction under the Clean Water Act following a series of US Supreme Court decisions, culminating in the 2006 Rapanos decision, that left the extent of the government’s authority unclear.

In the Rapanos case, a plurality of the Court found that the USACE did not have jurisdiction over certain wetlands on a private landowner’s property.  In a concurring opinion, Chief Justice John Roberts suggested that if the USACE had published a rule defining its jurisdiction prior to the exercise of jurisdiction at issue in this case the Court could have deferred to the USACE’s judgment under established precedent.

With the new WOTUS rule, the EPA and USACE are finally trying to publish that rule that Chief Justice Roberts didn’t have to work with in 2006.

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